The Investigation

The complaint

1. Mr X complained about the way the Council dealt with his housing. He says the Council:

• failed to complete a housing needs assessment and failed to review this;

• failed to agree and complete a personalised housing plan;

• delayed in accepting the main housing duty;

• placed him and his family in several different bed and breakfasts;

• failed to provide any accommodation for a three-day period in January 2024;

• failed to provide financial support to help the family when they did not have any cooking or laundry facilities;

• failed to offer suitable accommodation;

• incorrectly said he declined a property; and

• wrongly ended the relief duty.

2. Mr X says this has caused him and his family distress. He said that he and his family had not been able to eat hot food in their accommodation and have had poor sleep. Mr X also said his children’s education suffered as they did not have their own space to study.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we have used the word 'fault' to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

6. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)

Legislation and guidance Homelessness

7. Someone is homeless if they have no accommodation or if they have accommodation, but it is not reasonable for them to continue to live there. (Housing Act 1996, Section 175)

Assessments and Personal Housing Plans (PHP)

8. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. The Code of Guidance says, rather than advise the applicant to return when homelessness is more imminent, the housing authority may wish to accept a prevention duty and begin to take reasonable steps to prevent homelessness. Councils must notify the applicant of the assessment. Councils should work with applicants to identify practical and reasonable steps for the council and the applicant to take to help the applicant keep or secure suitable accommodation. These steps should be tailored to the household, and follow from the findings of the assessment, and must be provided to the applicant in writing as their personalised housing plan. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)

9. There are no specific timescales for assessment or producing a PHP, but the Guidance stresses the need to take reasonable and sometimes urgent steps to prevent homelessness and that these may be taken alongside the process of assessment and drawing up the PHP.

The prevention duty

10. If councils are satisfied applicants are threatened with homelessness and eligible for assistance, they must help the applicants to secure that accommodation does not stop being available for their occupation. In deciding what steps they are to take, councils must have regard to their assessments of the applicants’ cases. (Housing Act 1996, section 195)

The relief duty

11. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)

The main housing duty

12. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure that accommodation is available for their occupation (unless it refers the application to another housing authority under section 198). But councils will not owe the main housing duty to applicants who have turned down a suitable final accommodation offer or a Housing Act Part 6 offer made during the relief stage, or if a council has given them notice under section 193B(2) due to their deliberate and unreasonable refusal to co-operate. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)

Review rights

13. Homeless applicants may request a review within 21 days of being notified of the following decisions:

• giving notice to bring the prevention duty to an end;

• giving notice to bring the relief duty to an end; and

• the suitability of accommodation offered to the applicant after a homelessness duty has been accepted (and the suitability of accommodation offered under section 200(3) and section 193). Applicants can request a review of the suitability of accommodation whether or not they have accepted the offer.

Interim and temporary accommodation

14. There are two types of accommodation councils provide to certain homeless applicants: interim accommodation and temporary accommodation.

15. A council must secure accommodation for applicants and their household if it has reason to believe they may be homeless, eligible for assistance and have a priority need. This is called interim accommodation. (Housing Act 1996, section 188)

16. If a council decides it owes a main housing duty, the accommodation a council provides until it can end this duty is called temporary accommodation. (Housing Act 1996, section 193)

17. If a council ends its interim accommodation duty, but then goes on to accept the main housing duty, it still has a duty to provide temporary accommodation.

18. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of their household. This duty applies to interim and temporary accommodation. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)

19. Interim and temporary accommodation can be the same physical property. What changes is the legal duty under which a council provides it. This is important because there is a statutory right to review the suitability of temporary accommodation. This then carries a right of appeal to the county court on a point of law. There is no statutory right to review the suitability of interim accommodation.

Suitability of accommodation – including use of B and B

20. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of their household. This duty applies to interim accommodation and accommodation provided under the main housing duty. (Housing Act 1996, section 206 and Homelessness Code of Guidance 17.2)

21. Homelessness temporary accommodation must be legally suitable. (Housing Act 1996, section 206) Anyone who believes their temporary accommodation is unsuitable can ask the council to review the accommodation’s suitability. (Housing Act 1996, section 202) If the council’s review decides the accommodation is unsuitable, the council must provide suitable accommodation. If the review decides the accommodation is suitable, the applicant has the right to appeal to the county court on a point of law. (Housing Act 1996, section 204)

22. Councils must consider the location of accommodation when they consider if it is suitable for the applicant and members of their household. If a council places an applicant outside its district, it must consider, among other matters:

• the distance of the accommodation from the “home” district;

• the significance of any disruption to the education of members of the applicant’s household; and

• the proximity and accessibility to local services, amenities and transport. (Homelessness (Suitability of Accommodation) Order 2012)

23. Wherever possible, councils should avoid using B and B accommodation. (Homelessness Code of Guidance paragraph 17.33)

24. B and B accommodation can only be used for households which include a pregnant woman or dependent child when no other accommodation is available and then for no more than six weeks. B and B is accommodation which is not self-contained, not owned by the council or a registered provider of social housing and where the toilet, washing, or cooking facilities are shared with other households. (Homelessness (Suitability of Accommodation) (England) Order 2003 and Homelessness Code of Guidance paragraph 17.35)

What we have not investigated

25. We cannot investigate matters about Mr X’s complaint that the Council incorrectly said he declined a property. This is because we cannot see that Mr X complained to the Council about this. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. Even if Mr X had complained about this, there is no evidence that his accommodation or bidding was interrupted, and so it is unlikely any fault would have caused him a significant injustice.

26. We have investigated the remainder of Mr X’s complaint. The investigation start date is June 2023 and the end date is July 2024.

How we considered this complaint

27. We have produced this report following the examination of relevant files and documents.

28. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were taken into account when the report was finalised.

What we found

Summary of key events

29. Mr X made a homelessness application to the Council on 27 June 2023, because he was going to be evicted from his private rented accommodation. The Council completed an assessment and awarded him the highest band on the housing register, due to threat of homelessness. The prevention duty started.

30. At the end of August 2023, Mr X and his family were evicted from their private rented accommodation.

31. The Council accepted the relief duty and provided Mr X and his family with interim accommodation, in B and B accommodation, the same day. This consisted of several rooms, due to the size of Mr X’s family. The Council said at this point, it did not review Mr X’s PHP.

32. Between August 2023 and July 2024, the Council moved Mr X and his family several times into different B and Bs. The Council gave reasons for each move, which was usually due to lack of capacity within a B and B.

33. In early August 2023, the Council wrote to Mr X again to say it had completed an assessment and awarded him the highest band on the housing register, because he was statutorily homeless. It said he could apply for five- and six-bedroom properties. It did not send Mr X an updated PHP.

34. In late August 2023, Mr X emailed the Council saying the interim accommodation was unsuitable as he could not prepare meals for his family. Mr X asked for accommodation with a kitchen. The Council responded to say he would need to wait due to lack of availability of large properties.

35. In early November 2023, the Council emailed Mr X to say it had found a five-bedroom private tenancy. Mr X said the property was too expensive and too far from his children’s schools.

36. Shortly after, the Council wrote to Mr X to formally offer him this property to end its relief duty, it also set out his suitability review rights. However, the Council wrongly said it was an offer of social housing. The Council made the same mistake when it wrote to Mr X in December ending the relief duty because he had refused the offer. Mr X and his family remained in B and B accommodation throughout this time.

37. On 5 January 2024, Mr X contacted the Council to try to accept the offer of the property. The Council told him the property was no longer available.

38. The Council noticed the incorrect reference to social housing in mid-January 2024. Because of this error, the Council withdrew its decision to end the relief duty. It booked another B and B for the family and said there was no break in the Council providing Mr X with accommodation.

39. On 26 January 2024, the Council contacted Mr X, apologising for the delay in progressing his case. It said it had reviewed his housing assessment, and sent him an updated PHP.

40. In late May 2024, Mr X complained to the Council about the same issues as this complaint.

41. The Council said it made a main duty decision on 1 July 2024. We have read an undated letter telling Mr X about this decision. It said he had priority need, and the relief duty had ended. It also said it would provide temporary accommodation. It confirmed Mr X was awarded the highest band on the housing register. The Council included an updated PHP with the decision letter.

42. Within this letter, there was a section named ‘suitability of temporary accommodation’, but this did not include any details of Mr X’s review rights about his temporary accommodation.

43. The Council responded to Mr X’s complaint on 3 July 2024. It:

• upheld Mr X’s complaint that it did not progress his case in a timely way, and there was a delay in progressing it to the main duty stage. The Council apologised for this, and said it had now placed his case in main duty with immediate effect;

• said it appreciated the accommodation provided was not ideal. It said Mr X’s need was five to six bedrooms, and it does not have properties of this size. It considered the B and B accommodation to be suitable for the number of household members. The Council said it explored moving the family to self-contained temporary accommodation, but these were not big enough;

• acknowledged Mr X’s concerns around lack of cooking and laundry facilities, but said it had reviewed his household income, and it was satisfied the family could cover laundry services and meals within this;

• also directed the family to children’s centres across the city, who have open kitchens to support homeless families, so they can prepare their own food;

• said it created a prevention PHP, at point of assessment and sent this to Mr X on 29 June 2023. It created a new PHP on 24 August 2023, when he became homeless (although there is no evidence of this), and the Council awarded a relief duty; and

• accepted the maximum six-week requirement for families living in B and B accommodation but said due to a spike in homelessness and lack of available suitable temporary accommodation, the Council cannot comply with this.

44. On 26 July 2024, the Council offered Mr X a privately rented six-bedroom property which he accepted, and his new tenancy started on 29 July 2024.The Council then ended its duty to him.

Conclusions

Assessment, reviews and PHPs

45. The Council completed a housing needs assessment in June 2023 and decided it owed Mr X a prevention duty. Following Mr X’s eviction, in August 2023, it completed another housing needs assessment and decided it owed Mr X a relief duty. Both times, it decided Mr X had the highest priority need. The Council quickly completed the assessments and made decisions and so there is no evidence of fault with this part of Mr X’s complaint.

46. The Council produced a PHP for Mr X in June 2023, when it accepted its prevention duty. When its duty changed to a relief duty in August 2023, the Council failed to send Mr X an updated PHP. The Council said this was sent in its complaint response to Mr X, but there is no evidence that this was the case. The Council did not send an updated PHP until January 2024.

47. The Guidance says a council must work with applicants to identify steps for the council and an applicant to take, to secure suitable accommodation in the form of a PHP.

48. The Council delayed in reviewing Mr X’s PHP, when its duty changed. Although there are no specific timeframes for reviewing and providing a copy of a PHP, we would not expect a council to take five months to do so. The Council’s delay was fault, which caused Mr X uncertainty about whether the Council was taking reasonable steps to provide him with suitable accommodation.

Review rights

49. When the Council decided to award Mr X the main housing duty, in July 2024, the status of the accommodation he was offered changed from interim to temporary accommodation. As detailed in paragraph 21, this change in status means a right to request a review of suitability would now apply. When the Council wrote to Mr X to tell him of this, it failed to include any details of his review rights. This was fault which resulted in Mr X being unaware of his right to request a review of the accommodation he considered to be unsuitable.

50. However, both Mr X and the Council were aware the accommodation was unsuitable so a review would not have changed the position and instead confirmed this to be the case.

Accepting the main housing duty

51. The Council accepted the relief duty in August 2023. The Code says a council should decide whether it owes a main duty within 56 days. This means the Council should have decided whether it owed Mr X the main housing duty by October 2023. The Council did not make this decision until July 2024. The delay of around 48 weeks to accept the main housing duty was fault.

52. Given it went on to accept the main housing duty, on balance, the Council would have made the same decision in October 2023, as Mr X’s circumstances had not changed. From October 2023, Mr X should have had a statutory right of review of the suitability of his accommodation. The Council’s fault denied Mr X access to his right of review, which is an injustice. However, as already noted, both Mr X and the Council were aware the accommodation was unsuitable so a review would not have changed the position.

53. The Council said to prevent delays in future cases, it has recruited more officers. It has also put in place a continuing recruitment process so it can replace any leaving officers quickly, with minimal impact on customers. The Council has also provided details of a project to manage caseloads and mitigate associated risk of errors. We will therefore not make any further service improvement recommendations.

Unsuitable accommodation with lack of facilities

54. The Council placed Mr X and his family in several different B and Bs between August 2023 and July 2024.

55. We are mindful of the significant challenges faced by councils in finding accommodation to meet the needs of increasing numbers of homeless families.

56. But the law is clear that councils can house households with children in B and B accommodation only as a last resort, and for no longer than six weeks. We accept that B and B accommodation was the only accommodation available. But, not moving Mr X and his family to self-contained accommodation after six weeks was service failure and fault.

57. The Council offered Mr X a property in November 2023, which he refused. We cannot say whether the property offered was suitable to end the relief duty or the main duty which the Council should have accepted by then. The Council’s incorrect reference to the property being social housing was fault. As soon as the Council realised its error, it reinstated its relief duty to Mr X, which reduced the injustice caused. We also note there was no interruption in Mr X’s housing or bidding. Because of its errors, the Council could not end its duty to Mr X in November 2023. It therefore had an ongoing duty to provide suitable accommodation, which it failed to meet.

58. Mr X and his children lived in unsuitable B and B accommodation for 42 weeks longer than they should have. Mr X’s family were split over several rooms, and they had no access to cooking facilities. Living in B and B accommodation can be particularly detrimental to the health and development of children (paragraph 17.33 of the Code of Guidance). We note that during this time, Mr X had children that were in important transitional periods at school and there was limited space for them to do schoolwork. There was also limited space for the children to play and the family moved around often, which would be disruptive to the children. This caused distress to Mr X and his family, avoidable expense, and is likely to have had a detrimental impact on their mental health.

59. We have recommended a remedy for this injustice. But, in calculating this, we have considered that Mr X declining the offer of the property in November 2023, contributed towards the injustice arising from living in B and B accommodation for an unacceptable amount of time. This is because although we cannot say whether the offered property was suitable, Mr X had an opportunity to accept the property and then ask for a review of its suitability. This would have ended the family’s stay in B and B, whatever the outcome of a review. The evidence shows the Council explained this to Mr X at the time.

Continuous accommodation

60. We have read the Council’s case notes related to Mr X, which includes the B and B bookings for him. There is no evidence the Council failed to provide any accommodation for a three-day period in January 2024. So, there is no fault here.

Council comments

61. The Council in response to the draft of this report confirmed it would accept the recommendations made except for the symbolic payment of £3,525 for the period of time the family spent in B and B accommodation. It said it would not agree to make the symbolic payment because the lack of suitable interim and temporary accommodation is caused by national and international factors, not fault in the actions of the Council. It felt that paying the remedy set a precedent that would be repeated in other cases, leading to very significant costs to the Council. It pointed to the large investments it is making to tackle homelessness in its area.

Our comments

62. We acknowledge the Council has invested significantly in its attempts to address the housing shortages in its area.

63. We clearly differentiate between the failings detailed that amounted to service failure (when an organisation fails to provide a service as it should have done because of circumstances outside its control) and those where fault by the Council had occurred (maladministration).

64. We recognise the Council is concerned that agreeing all the recommendations in the report could have significant financial implications. Any cases brought to us, would be considered based on their individual circumstances.

65. Our recommended remedy for Mr X is a symbolic one to recognise the injustice he and his family have suffered, not to punish the Council. We have made numerous similar recommendations to councils throughout the country, informed by our Guidance on remedies. The Council’s continued refusal to make the symbolic payment recommended has meant the significant injustice experienced by Mr X and his family remains unremedied. This has further added to their distress.

Recommendations

66. The Council has not agreed to our recommendation to make a symbolic payment of £3,525 for the injustice caused to Mr X and his family by living in unsuitable B and B accommodation for 42 weeks longer than they should have done. This is calculated at £150 a week from the period in B and B up until when the Council made an offer of accommodation in November 2023 (5 weeks in total) and £75 per week from 7 November 2023 to 29 July 2024 when they became suitably housed (37 weeks in total). We remain of the view this payment is appropriate and proportionate.

67. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet, or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

68. In addition to the requirements set out above, the Council has agreed to take the following actions within three months of the date of this report:

• apologise to Mr X for the faults identified. We publish Guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology; and

• make a symbolic payment of £500 for the distress and uncertainty caused to Mr X by its delay in reviewing and sending an updated PHP, delaying its decision to award the main housing duty, delaying his right to a suitability review of his temporary accommodation and communicating poorly about his housing status.

69. Following a previous investigation by the Ombudsman, the Council has already agreed to service improvements to address the use of B and B accommodation for families over six weeks. We have not repeated those here.

Decision

70. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Mr X. The Council should take the action identified at paragraphs 66, 67 and 68 to remedy that injustice.

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